Author: Amit Singh
According to Indian evidence act 1872, Evidence can be classified between Oral Evidence and Documentary Evidence, and it can be proved by oral evidence of fact or by documentary evidence, it means there are two ways of proving a fact. First One is by produced witnesses of fact, which are called oral evidence and others by making the document that records the fact and this is called documentary evidence. Oral evidence, is reliable, when it is adequate without narration or written proof to demonstrate a reality.
In this article, we are going to cover the Sec 59 and 60 of the Evidence Act says about the provisions relating to oral evidence Section 59 provides for proof of Facts by oral evidence.
MEANING AND DEFINITION OF ORAL EVIDENCE
The word “Oral” indicates by word of mouth. And ‘Oral Evidence’ meaning is “The evidence, which is confined to words spoken by mouth”. The knowledge of the court by the statement of a witness qualified to speak on the point. The evidence of witnesses in general is given orally, and this Means Oral Evidence. Consequently Oral Evidence contains the statement of witnesses before the court which the Court either permits or wants them to make. A statement can be made by witnesses capable of making it. A witness who can speak can communicate his information of the fact to the court by signs or by writing and it will be considered as oral evidence. Sometimes a witness, who is not able to speak, is allowed and considered as competent to give evidence in any matter which, he or she can make it understandable. In Verbal Statements, includes signs & gestures. A deaf person may appear by signs or by writing Oral evidence, if worthy of credit, is satisfactory without documentary evidence to prove a fact.
The meaning of “oral evidence” also given in the term “Evidence “in section 3 of the evidence act as:
“Evidence” means and includes
- All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence.
- [All documents including electronic records produced for the inspection of the Court], such documents are called documentary evidence.
PROOF OF FACTS BY ORAL EVIDENCE (SECTION 59)
This Section lays down that all facts may be proved by oral evidence, excluding the contents of a document. This section is slightly loose worded as it makes an unqualified statement as regards the exclusion of oral evidence to prove the contents of a document. The true position is that oral evidence can be led as evidence relating to documents under section 2. In the evidence of a witness is generally given orally, and this means oral evidence. The expression oral evidence, therefore, includes the statement of the witness in the court which the court either permits or requires them to make. The statement can be made by any method by which the witness is capable of making it. A witness who can’t speak may communicate of facts to the court by signs or by writings and in case it will be observed as oral evidence.
In this case court pointed out that evidentiary value of the oral testimony of an eye witness can’t be diluted by cause of non-production of any document in support of a claim contrary to the oral testimony
ORAL EVIDENCE MUST BE DIRECT (SECTION 60)
Section 60 deals the Oral evidence must, in all cases, whatever, be direct; that is to say –
If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it.
- If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it.
- If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner.
- If it refers to opinions or to the grounds in which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds –
Provided that the opinion of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held may be proved by the production of such treatise if the author is dead or cannot be found or has become incapable of giving evidence or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable.
Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection
IMPORTANCE OF ORAL EVIDENCE
In section 59 and 60 of the Indian evidence act, where written documents exist, they shall be formed as being the best evidence of their contents and no oral evidence can be offered to prove as to what is wrong in the document. Receiving oral evidence great Care must be exercised. The Court must examine the evidence, separate grain from the chaff, and accept only what it finds to be true and reject the rest. The real test for accepting or rejecting the evidence is:
- How reliable the story is with itself
- What extent it fits in with the rest of the evidence and the circumstances of the case.
- How much it stands the taste of cross-examination
DIFFERENCE BETWEEN ORAL AND DOCUMENTARY EVIDENCE
|Oral evidence||Documentary evidence|
1. Oral evidence means and contains all statements which are prepared by a witness in the court.
|Documentary evidence means making a document before the court of law and review is done by the court to know the facts.|
2. It is a statement by a witness.
|It is a statement of documents.|
3. In oral evidence, the witness expresses the facts by speaking, sign and with gestures.
|In documentary evidence, the facts are said and it is recorded in writing.|
4. Oral evidence is given in Section 59 and 60 of the Indian Evidence Act, 1872
|Documentary evidence is given in Section 61 to 66 of the Indian Evidence Act.|
5. Section 59 of the evidence states that it considers all facts as oral evidence except electronic evidence and documentary evidence. Section 60 states that oral evidence must be direct.
|Primary evidence is taken as the evidence which is given in several parts like duplicate copies or as counterparts like those which is signed by the parties or photocopy of the document and another side, the Secondary evidence covers, certified copies that have been made by the same mechanical process and also contain counterparts of the document against the parties.|
The importance of documentary evidence is more than oral evidence. The court mainly accepts documentary evidence but also considers oral evidence. Thus, we can say that there are two types of documents- oral and documentary evidence. In court, documentary evidence has more value. The Court wants the best evidence and documentary evidence is the best evidence and it contains two parts primary evidence and secondary evidence. Where Primary evidence is the best evidence recognized by the court. In the lack of primary evidence, secondary evidence is given to the Court. On the other side, oral evidence is evidence given by words sign and gestures and it is not permanent and it also can be changed. Therefore Section 91 and 92 exclude oral evidence by documentary evidence. Proof in the form of a document can be submitted in the place of giving orally.
- AIR 2004 S.C. 2294
- The Indian Evidence Act, 1872
- The evidence Law by Avtar Singh
- Evidence Law by Ratan lal & Dhiraj lal